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Sunday, May 6, 2018

Vengeance is referenced in the bible, yet from experience how often has the act of revenge been accompanied with unexpected consequences. All too often as human beings, we feel that payback is sweet and at times it may be. Our society has treated women, on the whole, less than fairly. Many will say that it is a gross understatement and one can shout out example after example of the unfairness through our history.

It is difficult to comprehend today what makes a woman less deserving of the right to vote or access to basic education. Today these wild barriers have become a thing of the past, yet society still has treated women in a less than comparable manner to men. Although women move within the circles of academia and politics equally to men they still find so many doors of so-called equal opportunity if not shut, very difficult to open.

Although the idea of inequality is reprehensible in any form it is the manner in which women had been treated by men in a moral even legal sense that has brought greater attention today. The inequality had manifested in our justice system as much as in society. Too often a woman who had been assaulted found herself facing a disbelieving legal machine where she is forced to prove that she had not in fact mitigated the circumstances of the assault. This inequality brought to life a spark in a young woman born in The Bronx, New York. Tarana Burke, at the age of fourteen, joined the 21st Century Youth Leadership Movement whose purpose was to create grassroots community organisers, and to this day has remained an activist in the community. After graduating college Burke developed an African-centered all-girls programme titled Just Be with its ultimate goal to "ensure that young women move through adolescence and into adulthood with a strong sense of self-worth and healthy self-esteem." (Wikipedia, Tarana Burke).In 2006 Tarana Burke still eager to find a resource that would help young girls heal created the Me Too My Space page, and the response was almost immediate with young women wanting to know how to be a part of the movement. It was not until October 2017 that Burke had become aware of the MeToo hashtag being used without credit to her. Actress Alyssa Milano started using #MeToo as an internet hashtag partially as a response to the accusations surfacing against Harvey Weinstein. Later Milano acknowledged Burke's much earlier use of the phrase and the movement that it had created, and Burke has remained supportive of the #MeToo hashtag.

Tarana Burke's goal was to help young women heal and to develop a sense of self-esteem and self-worth, she had been quoted as saying that the movement was about “empowermental empathy.” Now it is a fair question to ask if the #MeToo movement has shifted from Burke's original ideals? After all, the word empathy does not equate with a presumption of guilt simply based on accusation alone.

Hashtag MeToo appears to have become a mighty weapon, a divine sword of vengeance. Should an imperfect or as some say even broken system of justice where procedural fairness has been ignored be replaced by another extreme version? Whether it is popular to ask that question particularly by a male should not silence the need to seek an answer.

Today we are faced with a smothering blanket of fear wielded and manipulated by the MeToo Movement, where a mere accusation is enough to end everything. This new system of justice where an accusation is enough to exact consequence is not only gripped the world of entertainment but has spread across the board of society into government and all corners of the business world.

No one can deny that harassment of any kind must be fought and that sexual harassment has been a silent weapon used by predators for a long time. The unveiling of Harvey Weinstein was a good thing and needed to be done, but what has followed has gone to an extreme that threatens the very foundation of justice or procedural fairness.

An accusation of sexual harassment or any form of sexual impropriety is enough to have an individual removed from his job and face a public storm. In most cases, the accusation or allegation is not accompanied by evidence and all too often is based on something that happened in the past. Even words spoken in an inappropriate manner are enough for the MeToo banners and T-shirts to start waving in the air.

One such example comes from Canada when Steve Paikin, host of the TVO political show Agenda, was accused by a formal mayoral candidate Sara Thompson of sexual impropriety. Thompson, a candidate in the 2010 mayoral campaign for Toronto, accused Paikin of asking her if she would sleep with him. The allegation by Thompson claims that Steve Paikin made this advance in exchange for putting Sara Thompson on his show.

Thompson sent Steve Paikin an email outlining her position which he provided to the TVO executives. To their credit, TVO did not cave into the hysteria created by MeToo and did not remove Steve Paikin as host of the programme. Lisa de Wilde, CEO, in a press release stated that Paikin will remain as host until an independent investigator Rachel Turnpenny – a lawyer specialising in workplace investigations – completes her inquiry.

The investigation took eleven weeks and twenty-one witnesses were interviewed at the end of which a 27 page report was released by Rachel Turnpenny of the law firm Turnpenny Milne LLP. Steve Paikin had been cleared of any wrongdoing. A CBC article by Kristin Tushony and Samantha Beattie, (Steve Paikin cleared after investigation into allegation of inappropriate comment, April 27, 2018) quotes from the report, “At times, the investigation had some serious concerns with Thompson's approach to the investigation. The investigator learned that Thompson was contacting potential witnesses in what appeared to be either a fishing expedition to secure other potential complainants against Paikin or to garner support for her recollection. Thompson also demonstrated a tendency to suggest to witness a version of events (in line with her own perspective) prior to their interviews with the investigator.” The full report and appendix were released on tvo.org.

MeToo has become a powerful weapon and most corporations cave in, TVO in this situation did not see that an accusation alone was enough. It takes courage to stand up against any form of pressure which attempts to exact actions otherwise not contemplated, as it takes immense courage to publicly critique and examine the realities of a phenomenon like MeToo.

Margaret Atwood, an extremely well known Canadian author wrote an opinion piece titled 'Am I a bad feminist?' for the Globe and Mail, published January 13th 2018. Atwood wrote this in response to being labelled what she refers to as a “Bad Feminist.” This label had found itself justified in part for an Open Letter called UBC Accountable that Atwood had signed in November 2016."In November of 2016, I signed - as a matter of priniciple, as I have signed many petitions - an Open Letter called UBC Accountable, which calls for holding the University of British Columbia accountable for its failed process in its treatment of one of its former employees, Steve Galloway, the former chair of the department of creative writing, as well as its treatment of those who became ancillary complainants in the case," Atwood's own words from the Globe and Mail article.

Steven Galloway was a UBC professor who had been accused of sexual misconduct. He did not know who his accusers were and was forced to sign a confidentiality agreement so he could not even defend himself. After an inquiry conducted by a judge found that there had been no sexual assault, Galloway was fired anyway. Atwood had signed this petition with a number of other prominent people, several of who have withdrawn their signatures after a frenzy of pressure.

In her article Atwood says that the MeToo Movement is a symptom of a broken legal system that found a new tool on the internet, she adds: “If the legal system is bypassed because it is seen as ineffectual, what will take its place? Who will be the new power brokers?” That is the danger now society faces and these new power brokers appear to care little for a fair procedure or legal rights. It has become a new religion, a fever-pitched shrill which marches on the warpath.

Europe in many ways has seen the MeToo Movement in a different fashion. French actress Catherine Deneuve along with some 100 french writers, performers and academics had written an Open Letter which appeared in Le Monde, saying gallantry is not “macho aggression.” Euronews published a translated version of the Letter on January 10th 2018, 'Catherine Deneuve says “flirting is not a crime," criticises #MeToo movement' where the Open Letter states: “Rape is a crime. But insistent or clumsy flirting is not an offence, nor is gallantry a macho aggression.” Out of all the sentiment expressed in this letter the most powerful was, “#metoo has defacto led to, in the press and on social networks, a campaign of public denunciations and indictments of individuals who, without being given the opportunity to respond or defend themselves, have been put on exactly the same level as convicted offenders.”

Deneuve faced a backlash of attack for signing this letter and on January 15th 2018, in an article by Christopher Hooton for the Independent said, “Yes, I like freedom, I don't like this characteristic of our times whereby everyone feels they have the right to judge, to arbitrate, to condemn. A time where simple denunciations on social media generate punishment, resignation and sometimes, and often, lynching by the media.” Deneuve, on the other hand, finished by saying, “I am a free woman and I will continue to be. I warmly salute all the victims of odious acts who may have felt offended by the letter published in Le Monde, it's to them and them alone that I apologize.”

To disagree with MeToo is to face a potential backlash of accusation and attack for taking an anti-feminist stand, yet our democratic society is anchored in the freedom of speech for all and a belief that justice is equal to all. Somehow MeToo forgets that and appears to demand punishment purely on an accusation, is that justice?

There is no denying that MeToo had brought to public attention some serious predators like Harvey Weinstein and Kevin Spacey. Through this Movement five women had made public the actions of famous New York architect Richard Meier, a partner in Richard Meier & Partners. One of his accusers was paid $150,000 as a settlement which adds more credibility to the accusations. Hadley Keller for his article in Architectural Digest, March 13th 2018 published Meier's apology: “I am deeply troubled and embarrassed by the accounts of several women who were offended by my words and actions. While our recollections may differ I sincerely apologise to anyone who was offended by my behaviour.” Richard Meier has stepped down from the company carrying his name until a full HR investigation is complete.

Charitable organisations such as the Red Cross, Oxfam and Plan International UK have come face-to-face with allegations of inappropriate behaviour and more. The need to dump staff and place promissory notes of pending investigations have found their way into collection boxes. Of all organisations facing this tsunami is the Vatican. Nuns are describing how they are mere slaves to bishops and cardinals. After all the cleaning, washing, cooking and serving they are not permitted to sit at the same table repast.

Still, for all the publicised victories the MeToo Movement seems to roll through the landscape of society with the air of intimidation of sexual misconduct stemming from alleged incidents committed ten or more years in the past. One such example comes from the Los Angeles County district attorney's office where five cases of sexual harassment against filmmaker James Toback were dropped. Even though there were several hundred allegations made against Toback, the five which the police brought to the D.A. had fallen beyond the statute of limitations.

Statue of Limitations could have played an important role in the Bill Cosby situation but justice, as broken as it is,claimed to be, found the crimes that Cosby was accused of could not go free. Bill Cosby had been called a raping monster by one accuser, and it was the courage of one woman, Andrea Constand, to endure a retrial and heavy examination by the Cosby defence lawyer which brought him to justice. Cosby was convicted of three counts of sexual assault, (each carrying a conviction of 10 years imprisonment); his lawyer has said that Cosby will appeal.

Time is not only the issue that some of the women have had to deal with, although that can be a completely separate topic of discussion. No investigation into any allegation can ignore the motivation behind the accusation. Indian-American comedic actor Aziz Ansari who won a Golden Globe award for his Netflix series 'Master of None' has had to face these questions.According to all accounts, Aziz Ansari met a young woman at a party which later led to the two of them going on a date. After the date the young woman, anonymously, provided the website Babe an account of her encounter with Ansari claiming sexual assault. Ansari has not denied the date or of engaging in sexual activity, only that he thought everything was completely consensual. If Ansari was a surburban fella who took a girl to a restaurant and later to his apartment, no dissatisfaction of either party would be made public. Aziz Ansari is not a suburban fella; he is a Golden Globe winner and the topic for all talk show hosts to dissect and discuss his life and reputation, while the young woman remains anonymous.Washington Post and Variety had reported that allegations of inappropriate overtures had been made by veteran broadcast journalist Tom Brokaw in mid-1990's. The accuser is a former NBC News and Fox News correspondent Linda Vester. Brokaw denies these allegations and wrote an emotional letter to friends and associates from which CBC News quotes: "She couldn't pick up the phone and say I'd like to talk. I have issues from those two meetings 20 years ago. Instead she became a character assassin. Strip away all the hyperbole and what has she achieved? What was her goal?" (Tom Brokaw 'hurt and unmoored' by sex harassment allegations, Associated Press, April 27, 2018).

Then there is Paul Bliss who was CTV's Queen's Park Bureau Chief, a veteran reporter and news anchor. As Postmedia's Christie Blatchford said, “he did the truly modern death.” (Christie Blatchford: There was no other way this story could end but in Paul Bliss being disappeared, National Post, March 8, 2018).

Paul Bliss found himself at the opposite end of this new justice stick. He had been accused of sexual abuse. The accuser was a former CTV employee, Bridget Brown, and the incident of sexual abuse had happened in 2006. Blatchford states, “she wasn't hurt, … disgusted and traumatized, yes. Hurt no,” and went on to have “an excellent career at CTV.” Then why such an allegation twelve years later? According to the article “Brown was struggling with CTV's coverage of MeToo. In particular the slightly smug reporting of some of their reporters on the Patrick Brown story.” Blatchford further writes Bliss was “done in by publicly made allegations of sexual abuse and the climate of corporate fear wrought by #MeToo.” A career shattered by allegation alone, now Bliss has launched a 7.5 million dollar lawsuit over the dismissal; suing the broadcaster, its parent company, and the woman who made these public allegations. “Bliss claims that he and Brown had a consensual encounter and that she had defamed him.” None of this has been proven in court yet.

The matter which had upset Bridget Brown so much was the public allegation of sexual misconduct by two women against former Ontario PC Leader Patrick Brown. Former yes, as the public allegations had been the reason his leadership of the PC Party ended. One of the women originally claimed she was in high school and under the legal drinking age, later changing her story that she was out of high school and of legal drinking age at the time of the incident. Again the alleged incident occurred several years ago when Brown was a federal MP representing the Barrie, Ontario area. Patrick Brown has denied these allegations from the beginning calling them false and malicious. Still, it is the power wielded by the MeToo fever that brought an end to his leadership of the political party. Now Patrick Brown has filed a statement of claim that seeks damages of $8 million and an order that CTV remove all material in its possession that alleges sexual misconduct to CTV News. Yet again the action has not been proved in court, and regardless of whether Brown wins his action, the allegation will haunt his name after the gavel falls.

MeToo's power comes from making the allegation public and forcing life-changing consequences purely based on the allegation. Requiring an investigation and evidence to prove the allegation does not make one insensitive to women, nor does it mean that requiring such basic rights makes one complicitous with a potential offender.

In England Bill C 51is almost law heading for a second reading in their Senate. The Metropolitan Police Commissioner in London, Cressida Dick is quoted by Christie Blatchford for National Post, in 'Unlike Canada, U.K. has learned sex assault victims' aren't always victims' (National Post, April 2, 2018) as, “What seems so elementary - that the first job of police isn't to support victims or anyone else, but rather to investigate complaints – got lost in 2014, when the national acceptance of victims as inherently being truthful went to a flat-out recommendation that the presumption that a victim should always be believed should be institutionalized.”

Police Commissioner Cressida Dick was referring to Operation Midland where accusations of a VIP pedophile ring were brought forward by one alleged victim, who was known as Nick. A number of prominent men had their reputations and lives ruined even though no criminal charges were laid. Later a report into the 'Operation' by retired high court judge, Sir Richard Henriques, found that “the presumption of innocence was set aside by detectives in their eagerness, and what they felt was their duty, to believe Nick.” Blatchford further quotes Henriques: “this protocol of automatically believing victims perverts our system of justice, strikes at the very core of the criminal justice process, will generate miscarriages of justice on a considerable scale, and should be scrapped.” According to Blatchford “And scrapped, thanks to Dick, it has been.”

The British may re-enforce the principles of a justice system where the presumption of innocence and the requirement of proof of guilt is “elementary” before any sentencing. MeToo does not use the justice system rather it has developed its own form of justice through social media and traditional journalism hungry for headlines; all of this whilst claiming that the justice system is broken.

An example of this new justice system comes in the form of a letter sent to the National Post, the writer is anonymous of course. This letter had a copy of an email attached which the writer claims was sent by a male supervisor, and which the writer claims to be “a sexually explicit message about a female colleague's lingerie.” The writer further claims that the male supervisor encouraged “all recipients of the email to approach the female colleague about it.”

Once again quoting Christie Blatchford, (Anonymous letter shows #MeToo has spread to ranks of ordinary workplaces too, National Post, February 1, 2018), “Clearly the expectation that accusers must and should and will always be believed – mouthed with nauseating regularity by every political leader in the country, among others – has permeated the ordinary workplace.” That offending email was examined and parts quoted in the article leaving one questioning the mental state of the writer of the complaint. Blatchford said, “There isn't an adult in the world, male or female, who should have taken offence at that email, there was nothing offensive about it.” What has become amazing is that both #MeToo and #Ibelieve demand that every person who makes any allegation relating to sexual misconduct is telling the truth. No evidence is required, no proof only the accuser's words. This is not fixing a broken justice system.

Finally after all the discussion of the benefits that MeToo has had on today's society and the examination of the shocking effect its followers have forced on the democratic belief of procedural fairness comes this article for the CBC. It is an Opinion piece written by Michael Spratt, titled 'The presumption of innocence is for courtrooms, not politics', (January 30, 2018). Spratt appears to have the opinion that political figures are lesser Canadian citizens and therefore should not expect any procedural fairness. He also seems to approve the system of exacting consequence on accusation alone.

Micheal Spratt tells the reader that he is going to let them in on “a little secret: that the “presumption of innocence is a legal construct.” Apparently, this legal construct was designed to protect individuals charged with a crime so as to prevent unfair deprivation of their liberty. If that is the case then the rest of society, and it is quite a big chunk of it, has no right to have an accuser prove their accusation past the raised pointing finger.

Spratt goes on to say, “To insist on the strict application of the presumption of innocence in everyday life is an absurd and insidious act of complicity to the realities exposed by the #MeToo movement.” Then several paragraphs later he says, “there is no question that as a society we should strive to be fair – to both the accusers and accused.” Is there a contradiction between these two sentences? Or is it that presumption of innocence is absurd and bordering on complicity with the accused only in MeToo situations? "As a practicing lawyer... [Yes, Michael Spratt indeed is a lawyer!], I know allegations can destroy lives. I know that false allegations do happen. I have seen them. And it is true that we need to be vigilant against any fraying of one of the golden thread that holds our justice system together." The very same writer in the article states, "the presumption of innocence does not mean someone is factually blameless until proven otherwise. In short the presumption of innocence is a procedural protection to ensure fairness - not a moral imperative." Don't you love lawyers? The question is, has MeToo and all its offspring empowered women or simply powered up women to be the new bully?

Wednesday, March 7, 2018

The Regional Municipality of Niagara has eviscerated the
heart of our Charter of Rights and it has done this with willing accomplices
from the Niagara Regional Police and the Office of the Ombudsman. Regional
Chair Alan Caslin cannot be permitted to shrug off the responsibility we call
Regional Council and Regional Government. His leadership should have ended with
the public knowledge of his personal association with Justice Edwards but this
is Niagara, where truth, news and facts were filtered through a cheesecloth of
censorship.

On December 7th 2017 a storm exploded at Niagara’s
regional council meeting. The consequences of this storm spilled out of the
teacup to affect the very foundation of our Canadian Democracy and our rights
as Canadian citizens.

During a council meeting open to the public and media, it was
announced that a closed door meeting was to be conducted. In many municipal
council chambers that means the council and municipal members leave to another
room and have that portion of the meeting. At Niagara’s Regional Council the
public and media are asked to leave the chamber and only return once that
portion of the meeting is over. On December 7th 2017 Fort Erie Regional
Councillor Sandy Annunziata claimed that Preston Haskell, who was sitting at
the media table, had hidden his voice recorder under his cap and left the
chamber. The implication here is that Preston Haskell wanted to secretly record
the closed-door portion of the council meeting.

Sitting next to Preston Haskell was reporter Bill Sawchuk from
The Standard, with his laptop open and note pad. Bill Sawchuk also left the
council chamber, leaving behind his laptop on the media table.

Councillor Annunziata’s apparent panic resulted in the
seizure of Bill Sawchuk’s laptop, notes, and Preston Haskell’s personal
recorder. In addition Sawchuk was told by Region’s General Manager Chris Carter
to leave the building, and if he did not comply he would have to deal with
Niagara Regional Police (NRP) officers.

It has to be made clear from the beginning that the seizure
of private property was by Niagara Regional Staff not by the Niagara Regional
Police. This was an unlawful seizure of personal property by Regional Staff. No
law in the Criminal Code of Canada had been broken by either Haskell or
Sawchuk, no section of legislation from the Municipal Act had been breached,
and no municipal by-law exists that prohibits the recording of council. Who
provided the legal authority to anyone at Region to seize personal property?

Bill Sawchuk called his newspaper, The Standard called their
lawyer, and Sawchuk’s laptop and notes were returned to him four hours later.
Preston Haskell on the other hand is a blogger and private citizen and if he
called anyone it may have been his wife. His recorder was kept by Region and
turned over to Niagara Regional Police the next day.

Now the destruction of the very basic principles as
guaranteed by our Charter of Rights and Freedoms really becomes alarming. No
crime of any kind had been committed, not by Sawchuk nor Haskell. Haskell’s
recorder was seen on the desk clearly in the open and in the livestream
recording of the meeting until the closed-door meeting was called. Since the
seizure by Region of the recorder, Regional Councillor Tony Quirk from Fort
Erie had posted on Facebook as saying that it is “a violation of the criminal
code to attempt to record a conversation or deliberation to which the party
attempting to record does not have standing." That is absolutely false and
Councillor Quirk has been asked to explain his statement. Councillor Annunziata
laid claim to “political skullduggery,” and has since refused to comment. All
of this points to an insane overreaction by Regional Councillors and the
mindless response by Regional Employees. The Director of Legal and Court
Services, Donna Gibbs, was present; surely she is aware of the law?

The seizure had been committed by a private individual; yes
this person is in the employ of the Regional Municipality of Niagara but still
a private individual. This seizure was unlawful and may even be considered as
theft. Niagara Regional Police had been called but only to bully Bill Sawchuk
to leave the building. Those police officers did not speak to Preston Haskell,who had leftthe building before the police arrived, nor did they seize any
other property or search anyone. After returning Sawchuk’s personal property
Regional Staff kept Haskell’s recorder and later handed it to Niagara Regional
Police. The first screaming question is what did the regional employee say to
the police? Police officers are expected to have a fundamental understanding of
the law and if in doubt then it would be expected that an officer would
approach someone with more stripes for clarification. What was the
justification or motivation for NRPS to accept this piece of personal property?
Did they ask how did it become the possession of Regional Staff, and why?
Regional staff had no lawful authority to seize personal property when no crime
had been committed.

Researching the law surrounding seizure of property in the
Criminal Code of Canada and the Canadian Criminal Law Notebook written by Peter
Dostal, a lawyer with the Public Prosecution Service of Nova Scotia, only more
alarming questions arise. As Peter Dosal states, “The Canadian Criminal Law
Notebook is a legal reference covering the principals and rules set out by the
Criminal Code and case law. The Canadian Criminal Code and the years of
accompanying case law have created a dense field of law full of rules and
expectations that are not always readily known to most people including
practitioners.” These last words appear to hold a great deal of weight. Mr.
Dostal finishes his introduction with: “It is divided into five essential
areas, substantive criminal law, criminal procedure, search and seizure,
evidence and sentencing.”

Canada’s Charter of Rights and Freedoms under section 8
states, “Everyone has the right to be secure against unreasonable search or
seizure.” The CanadianCriminal Law
Notebook(CCN) expands further on
section 8 of the Charter when there appears to be an intrusion on a person’s
reasonable expectation of privacy. “An expectation of privacy is a normative
rather than a descriptive standard. It is concerned with the degree of privacy
needed to maintain a free and open society, not necessarily the degree of
privacy expected by the individual or respected by the state in a given
situation.” The CCN continues, “the determination of privacy rights is made
from the independent perspective of the reasonable and informed person who is
concerned about the long-term consequences of government action for the
protection of privacy.”

Did Bill Sawchuk and Preston Haskell, both sitting at the
media table, side-by-side, have a reasonable expectation of privacy? Sections in
the Criminal Code, such as s.487 and s.489, provide the rules for Search and
Seizure. Further, s.490 provides a comprehensive scheme for the management,
return or disposition of items that have been seized. Ideally in any situation
any seizure of property should occur after a Warrant to Search and Seize has
been approved by a justice. There are circumstances where Warrantless Seizure
is permitted under s.489, depending on specific circumstances of an incident. The
whole issue of seizure with or without warrant has to be based on a peace
officer’s belief of reasonable grounds that the item seized was a) obtained by
crime, b) used in a crime or, c) affords evidence of a crime.

“This provision permits an officer who is executing a warrant
to make a warrantless seizure of anything he believes on reasonable grounds has
been used in the commission of an offence. The legal test for reasonable
grounds to believe should be the same as that for Warrantless Arrests. It must
involve an objective basis for the belief which is based on compelling and
credible information. It is something more than mere suspicion, but less than
the standard applicable in civil matters of proof on the balance of
probabilities.”

As stated, the rules surrounding search and seizure – with or
without a warrant – are intricate and legally extensive. On December 7th
2017 no police officer seized any item of personal property belonging to either
Bill Sawchuk or Preston Haskell. In fact the NRP were called on the advice of
Regional Councillor Dave Augustyn. Those NRP officers were only used to bully
Sawchuk into leaving the building without his personal property. The seizure
had already occurred behind closed doors, with no witnesses other than
self-interested regional staff. If Sawchuk had not agreed to leave the building
on what grounds could the NRP physically escort or arrest him? How can anyone
behind those closed doors be trusted as a witness to the facts? Were cameras
still recording after the doors were closed as a record of the closed doormeeting?

Rules relating to seizure without a warrant state, “Every
peace officer and every public officer who has been appointed or designated to
administer or enforce any federal or provincial law and whose duties include
the enforcement of this or any other Act of Parliament, who is lawfully present
in a place pursuant to a warrant or otherwise in the execution of duties may
without a warrant, seize anything that the officer believes on reasonable grounds,

a) has been obtained by the commission of an offence
against this at any other Act of Parliament;

b) has been used in the commission of an offence against
this or any other Act of Parliament; or

c) will afford evidence in respect of an offence against
this or any other Act of Parliament.”

Who at Region was the public officer appointed or designated
to administer or enforce any federal or provincial law? It appears Regional
Councillor Sandy Annunziata did the search of private property claiming,
“heightened awareness of the presence of political skullduggery,” and
Councillor Dave Augustyn advised to call the police in the panic. Are either of
these two councilors qualified under this rule? A regional employee was then
instructed to physically take Sawchuk’s computer, notes and Haskell’s recorder,
and take them somewhere. Who gave this direction, was it Regional Chair Alan
Caslin? All of this was done behind closed doors and under the nose of Donna
Gibbs, Director of Legal and Court Services.

Sawchuk’s computer and notes were returned to him after four
hours as the newspaper unleashed its legal people onto Region, but not the
recorder belonging to Haskell as previously stated. It was not until the
following day that Region took the recorder to the NRP. Where was it held? Who
had access to the recorder all those hours? What was said to the police to
justify the unlawful seizure and custody of personal property?

As with Arrests and Search and Seizure there are rules under
the Criminal Code for the detention of seized items. Under s.490 a Report to
Justice must be provided as soon as possible regarding the thing seized.
Normally this report is brought to the justice who signed the search warrant, in
this case no warrant existed: a third unlawful party had seized the voice
recorder, not the NRP. What did the NRP provide to a justice as reasoning why
the thing was seized? What crime did the NRP claim was committed and by who?
Sections 489 and 487 provide the parameters for any seizure yet how did this
unlawful seizure by a third party satisfy those sections and the justice?

In R v Garcia-Machado, 2015 ONCA 569, “the judge found that
Garcia-Machado had “a high expectation of privacy in the items seized, both of
which contain a high level of personal and private information.” He concluded
that “police failure to report to a justice as soon as practicable rendered the
otherwise valid search unlawful and unreasonable, contrary to S.8 of the
Charter.” He then excluded the evidence under s.24(2) and acquitted
Garcia-Machado.” (Blue Line, ‘Untimely report to justice breached charter’ by Mike
Novakowski, September 8th 2015)

This was the result when the initial search was valid and
conducted by a police officer. The Crown appealed to the Ontario Court of
Appeal arguing that s.8 of the Charter had not been breached but the court
rejected the Crown’s submission. It is difficult to understand what the NRP
used in the report to justice in this issue, and what crime was claimed to have
been committed.

It was interesting to read Regional Councillor Tony Quirk’s comment
thread on Facebook when he said, it is “a violation of the criminal code to
attempt to record a conversation or deliberation to which the party attempting
to record does not have standing.” This sounded like official or formal
language but sadly it was only Councillor Quirk’s paraphrasing technique.
Councillor Quirk was asked where did he find this quote in the Criminal Code
and his first response was short and simply stated a reference to Section 184.

Section 184 of the Criminal Code has a heading which reads
Interception of Communication, with subsection (1) stating: “Everyone who, by
means of any electro-magnetic, acoustic, mechanical or other device, willfully
intercepts a private communication is guilty of an indictable offence.” It is
this that Regional Councillor Quirk paraphrased and posted on Facebook. At this
point it should be noted that some sections of the Criminal Code require
cross-referencing to other rules and common practices leaving the language of
the Code somewhat dated. One such section relates to Duelling and in today’s
society might be outdated, unless street racing somehow loosely falls under its
jurisdiction.

Still subsection (1) Interception has directly below it
“Saving provision,” a get out of jail free card so to speak. Here it states,
“Subsection (1) does not apply to, (a) a person who has the consent to
intercept, or implied, of the originator of the private communication or of the
person intended by the originator thereof to receive it.”

As Preston Haskell had his recorder sit on the media table in
front of him in full view of any and all council members, with permission to
record the council meetings, Councillor Quirk was asked if he read this
subsection. Like a politician anywhere Councillor Quirk ignored that question.
Instead Councillor Quirk said in his second email, “Those Search and seizure
provisions don’t apply to equipment left behind and abandoned. Which is what
happened. The owners forfeited those rights when they left the equipment behind
in closed doors.”

According to Regional Councillor Tony Quirk any individual
who may leave to go the washroom, or leave for any other reason expecting to
return and find the doors close behind them lose ownership rights and
protection of the law. Councillor Quirk seems to only paraphrase the Code and ignore
little things like Reasonable Expectation of Privacy, as discussed earlier.

Preston Haskell published this statement on his blog in
relation to the seizure incident at Region: “It turned out that security had my
hat, scarf, coat, camera and even the recorder pouch but no recorder. Dangling
the recorder pouch in my face security asked if the recorder for the pouch was
mine. I answered in the affirmative. He said it was too bad because it was
confiscated and I wouldn’t be getting it back.”

Haskell repeatedly said that he left the council chamber to
go to the washroom before the closed door meeting was called. This can be
easily verified by the video recording of the meeting as to the truth of
Haskell’s statement. It also explains why security came out to give him back
his property, namely the hat, scarf, coat and camera. Yet it does not explain
why Councillor Quirk would say in writing ”…equipment left behind and
abandoned. Which is what happened.” Why would Councillor Quirk make a statement
such as this which is false?

The seizure of personal property by regional staff was
clearly unlawful. Handing over of the illegally seized item to the Niagara
Regional Police continually raises the question as to why did the NRP take this
illegally seized thing. In an email dated February 14th 2018, Stephanie
Sabourin, NRP Media Relations Specialist said, “The recording device remains in
the possession of the NRPS pending a determination by the Ombudsman. We
maintain possession of the device under a detention order made following a
Report to Justice. This allows us to maintain possession during our investigation,
other proceedings and while determining lawful ownership.”

This response by Stephanie Sabourin for the NRP was
bewildering as the device was illegally seized, no crime had been committed nor
any law broken, at least not by Haskell, and its legal ownership was clearly
stated from the moment it was seized.All
of this simply did not make sense so further clarification was sought from NRP’s
Chief of Police. Acting Inspector Luigi Greco, Executive Officer to the Chief
of Police responded with an email on February 15th 2018. Acting
Inspector Luigi Greco supported the information provided by Stephanie Sabourin
and added, “I can confirm that the property in question is in the lawful
possession of the Niagara Regional Police Service to ensure the continuity of
the item in respect of the ongoing investigation by the Office of the
Ombudsman.” Preston Haskell had never been charged by the NRP for a crime, nor
was there any crime committed by Preston Haskell. The Ombudsman has no power or
authority to do anything but make recommendations to government bodies, he has
no authority over private citizens or their personal property.

Ontario’s Ombudsman has an Act in the Legislaturewhich sets out its powers and
authority. The Municipal Act under sections 238 and 239, and in particular
239.1 also sets out procedures for meetings, procedural by-laws and investigations.
All of this simply details the process of the investigation by the Ombudsman,
and even that authority is limited over the members of government not private
individuals. No Ombudsman has any authority to seize personal property, compel
a private citizen to provide any information or testimony, nor to instruct the
police to have possession of personal property on their behalf.

“Ombudsman to Investigate Incident At Niagara Council
Meeting” was the title of a press release dated December 14th 2017.
According to the press release provided by Linda Williamson, Director of
Communications, there had been “several complaints related to the incident”
received by the Ombudsman. In response SORT was unleashed, the Special
Ombudsman Response Team, leaving images of suited individuals sliding down ropes
from choppers in the sky. Somehow this vision is deflated like with the last
paragraph of the release by Linda Williamson.

“The investigation will be completed as quickly as possible,
Mr. Dube said. Under the Ombudsman Act, he may find the actions of a public
sector body to be (among other things) contrary to law, unreasonable, unjust,
oppressive, improperly discriminating or wrong – and make recommendations for
improvement. Although the Ombudsman’s recommendations are not binding, they are
almost always accepted.” These words leave a warm fuzzy feeling of confidence
that everything is going to be alright now.

Linda Williamson was asked in an email dated February 16th
2018 whether or not the Ombudsman’s Office had requested Niagara Regional Police
to maintain possession of the Haskell recorder. Her response was “our office
cannot comment until our investigation is completed and the Ombudsman’s report
is issued.” The secrecy of a report that is nothing more than a non-binding
recommendation is almost comical.

Bill Sawchuk was asked if he had been questioned about what
he saw that night in December of 2017, after all he was sitting next to Preston
Haskell. Sawchuk’s response arrived with a cute cat emoji, “I was asked about
what happened by both the ombudsman and police. The ombudsman has asked me not
to talk about my interview until their report is issued.” Preston Haskell was
asked if he had been questioned by the Ombudsman’s Office but he refused to
answer.

At the end of all this nothing will happen and no one will
face any consequences for their illegal actions. Regional staff simply stole
personal property in plain sight and handed it to Niagara Regional Police, who
are aware of the ownership of the property but claim to retain possession for
Mr. Dube, the Ontario Ombudsman and his investigation. No laws had been broken
by the owner of the property, namely a voice recorder, and the Ombudsman’s
report is nothing more than a pompous folly.

Finally one thought pops up like teenage pimples. What would
be the result if one was to take a handheld voice recorder, put a hat over it,
and attempt to record a group of a dozen or more individuals speaking some 15
to 20 feet away?

Wednesday, November 29, 2017

Wow, now this could start a loud discussion leading off to all kinds of
tangents relating to humanity and our endeavours. Most of us know
what hypocrisy is, Webster's describes it as “pretending to be what
one is not or to feel what one does not feel, a pretense of virtue or
piety etc.” Is this something many of us have come face to face
with at one time or another? Of course the answer is yes. Can we
say it was a pleasant experience, usually no, as we are left angry
and disappointed.

As a
publisher and journalist, meeting and interacting with a wide variety
of people is a necessity. Each article has a life of its own, a
purpose. For a journalist the right to freedom of speech is as
important as breathing. At the same time this right has to be
exercised with the acceptance of the consequences if taken too far.

There
well be some who claim that such acceptance is hypocritical in
itself. How can freedom be fenced in with conditions? In response
one can ask then if hate speech is to be accepted as free expression
without consequence? At times this debate tethers on a tight rope
attempting to find an acceptable middle ground.

Social
media and the world of the Internet provides a different angle to the
debate of free speech. Today anyone can open a Twitter account and
post any comment on any subject at any time. Knowledge or experience
no longer are prerequisites; an armchair quarterback is able to
dissect the latest Bills game from his lounger, bed or the washroom's
comfy chair for all to see. At the same time social media can
provide an open world to exchange thoughts and opinions with others
who would not be reachable in normal daily travels.

So is
it a pretense of virtue or piety to expect, even demand, restraint or
consequence for one's words while still believing in freedom of
speech? No one said this was an easy debate, even if the question of
the nature of hypocrisy will bring many to opposite sides.

To
answer at least one question, hypocrisy is within all of us and
usually it is not intended. How easy is it to say one thing and for
whatever reason do the opposite? True there are professions which
require the skill almost as a prerequisite, such as politics.
Children are open and honest, it is rare in natural circumstances to
find a child pretending other than in a game. Hypocrisy is
definitely a honed skill we pick up through the ascension from
childhood to responsible and mature adulthood.

Now
that being said the tie into the hand ringing question of free speech
and consequence comes in the form of a living example. It is a
situation unfolding at this very time revolving around Twitter.
Social media in its various forms can be entertaining, it can be
informative, and it can be a tool used to attack and damage the
character and reputation of others. More alarming is when this
attack is aimed at a total stranger.

On
Twitter, acting Captain Andrew Gill, a member of the Niagara Falls
Fire Department, posts a great deal about the Buffalo Bills football
team, information and news relating to the fire department and
personal tidbits. Gill also at times sees himself as a
socio-political commentator and will throw out posts relating to
local political events. Prior to his uniform days at the Niagara
Falls Fire Department, Andrew Gill had traveled through varying
career paths. One of these adventures brought Gill to the City of
St. Catharines City Council as an elected City Councillor. This
lasted only for one term, and although he tried to stay in the
political arena, any attempts made had failed.

In
2011 Andrew Gill appeared on the pages of the local newspaper The
Standard, as he had sued Preston
Haskell for defamation. At the time Haskell published the newsletter
Niagara Winners Circle and had made comments relating
to Gill whilst he was still a City Councillor. Gill took offense to
the comments by Haskell claiming they were not true, sued and won.
The Standard's article by
Marlene Bergsma, who no longer works for the paper, wrote that Deputy
Judge Brian Marotta had said that Haskell displayed “reckless
disregard for the truth.” On the witness stand Andrew Gill spoke
emotionally about how this article affected his father and the pain
it caused his family.

Gill
had a lot to say after the trial. He claimed that he filed the legal
action against Haskell to protect other civic minded people who may
want to run for public office but would be afraid to make themselves
vulnerable somehow. Bergsma quoted Andrew Gill saying: “This was
never about money. This was about someone taking a shot at my
integrity and my credibility and you can't put a price on that”,
and that “The judge sent a strong
message you can't say whatever you want where you want, and when you
do say something, it has to be based on facts.” These are
wonderful strong sentiments expressed by the winner Andrew Gill in
2011.

That
was 2011. Now in 2017 Andrew Gill had done a complete turnaround.
Gill made two tweets on July 27th,
2017, the first at 8:37am and then again at 8:51am, attacking an
individual he had no personal business dealings with at any time.
First he said, “Just heard Niagara Truth Warrior Davidoff hit
another home run today!” with a “What a Loser” GIF.

First
of all Gill posted this at 8:37am; no courts begin before 10:00 am.
More importantly the Davidoff Gill refers to is Alexander Davidoff,
who was not scheduled for court on the 27th
of July. Andrew Gill lied! There was another Davidoff scheduled for
court on that day, not
Alexander Davidoff. Court lists are available on the web, did Gill
have trouble reading English? Or was this information passed on to
him by another individual?

Not all issues brought before a
judge end in one party winning or losing; there are many times when a
judge will simply hear motions as an impartial adjudicator. So how
could Gill predict any outcome, especially at 8:37am before court
even begins? Did he hold onto crystal balls to consult or was it
someone else who had them? Mixed in with the lie and other glaring
questions that test anyone's sanity, there is the label of “Niagara
Truth Warrior.” Where did this come from? Clearly it is done in
an insulting manner, but who came up with it?

Andrew Gill had proven that to lie
publicly is not a problem for him, and he did so again in the second
post, literally minutes later. The second post also has a GIF with
an individual sitting at the side of some machinery and being
repeatedly hit on the head. Here Gill expands his tag of 'Niagara
Truth Warriors' to include three other people. One question begs for
an answer, why include [Alexander] Davidoff with the other three and
that tag?

A
written notice was sent to Andrew Gill informing him that legal
action was being prepared. On August 24th
2017 Gill responded with an email. He first confirms receipt of the
notice and then proceeds with this, “As a gesture of good will and
without prejudice or acceptance of wrongdoing. I will remove the two
tweets in question and offer my apologies to you for all the hard
feelings my tweets may have caused you.”

An astounding “gesture of
goodwill,” but mind you “without prejudice or acceptance of
wrongdoing,” and he removed the two tweets. These posts were
public and intended for one purpose; this 'apology' by Gill was in a
private email. Not only was the apology laughable, he accepted no
wrongdoing. He lied with the intent to damage the reputation of a
stranger but he did no wrong.

Being
the individual that Andrew Gill had apparently shown to be he did not
disappoint. On September 1st
2017 he could not resist and posted again: “This is what the
Niagara Truth Warriors do to me” with a GIF of a Minion vomiting.

As
he had provided the names of the other so called Truth
Warriors it
was easy to check the web if any of these individuals had made any
comment regarding Gill or on any community matter. No, the web was
silent and the target of this post was quite clear.

Now one can come to some conclusion
on the issues raised. Should Andrew Gill's actions be considered to
be simply the exercise of free speech or should there be consequences
and restraints? Gill himself went to court against Preston Haskell
in 2011 for what he claimed was commentary published which was not
based in truth. In addition to the issue of free speech Gill has
displayed a perfect example of hypocrisy in action. Simply refer to
the words attributed to Gill by the reporter after the trial in 2011,
and compare them to his actions and words in 2017.

Andrew Gill now sits in the same
chair as he put Preston Haskell in back in 2011. His defense will be
extremely interesting to hear.

Tuesday, October 3, 2017

Integrity,
what is it? Webster's describes integrity as “the quality or state
of being of sound moral principle, uprightness, honesty and
sincerity.” An admirable quality in any human being without a
doubt. Can we expect this quality in our elected officials? If
integrity is too much to look for in those we elect then what can we
look for as possible standards? If these qualities are too high a
standard to use as a benchmark for those in public office certain
codes governing acceptable and non-acceptable conduct are then
designed.

When
codes are designed to govern professional ethics and conduct, or
procedural equality and fairness then without a doubt we will find
someone in breach of these rules, and alleged breaches need to be
examined and investigated. Now ordinarily, this investigator can be
the head of a particular organisation or a senior individual within a
human resource division. In politics most often an outside
adjudicator is appointed who is required to be completely impartial
and immune to any bias. These individuals are provided with the
title of Integrity Commissioner, lending an air of authority and
power.

Slap
together Integrity and Commissioner and you have a political
watchdog. These ICs come in all shapes and sizes like the varying
levels of government. At the municipal level they have their
authority outlined in the Municipal Act though they are limited in
any consequences they can impose on politicians found to have
breached the code.

In
the Niagara Region much has been discussed in relation to the benefit
of an Integrity Commissioner. Regional Chair Alan Caslin cried that
he had been bombarded with too many complaints against his
councillors that he could not cope with it. For that reason the
Regional Municipality of Niagara appointed one John Mascarin of Aird
& Berlis, a Toronto law firm, as its interim-Integrity
Commissioner. John Mascarin was at the time the permanent IC for the
City of St. Catharines.

Controversy
surrounded the appointment of John Mascarin around potential conflict
of interest. Mascarin's law firm Aird & Berlis just so happened
to represent Chinese developers in negotiation with the Niagara
Region for a possible $1.5 billion land development. Still it was
John Mascarin's shining star status that appeared to have blinded all
on this minor inconvenience. After all he is a scholar in Municipal
Law and teaches at Osgoode Hall! He had written chapter after
chapter on municipal matters, specifically on the OMB and land
development regulations, in addition to being a practicing lawyer in
the field who has appeared on television and other media to comment
on all manners of the subject.

It is
important to note here that Integrity Commissioners have no set rules
or procedures to follow. The Municipal Act only provides the
description of their authority and nothing else. Plumbers,
journalists, lawyers – they all have codes of professional ethics.
Even politicians do; after all if the politician breaches his or her
code they face off with the Integrity Commissioner. Yet the
Integrity Commissioner has no codes or procedural rules at all. If
there was an association for these watchdogs it probably would have
as a motto, 'Come as you are, Do as you please'.

Chair
Alan Caslin unloaded the heavy burden of some six or seven complaints
that he could not handle upon the broad shoulders of this certified
expert. This expert cleared two councillors and dismissed the
complaints as smoke and mirrors, while stepping away from a third
against Alan Caslin himself. The remaining three found the expert
with rolled sleeves and dug in. All three were against Niagara's
favourite son, Regional Councillor Andy Petrowski. On May 18th
2017 John Mascarin rode into a public meeting of Regional Council to
present his report. These words uttered by John Mascarin of Aird &
Berlis are of great importance; they were on record and cannot be
denied.

Not
long after the May 18th public meeting two mayors, Jim
Diodati of Niagara Falls and Frank Campion of Welland, found
themselves revealed on Facebook hurling out the Nazi salute. This
thoughtful gesture was performed during a Niagara Peninsula
Conservation Authority Board Meeting, of which both are board
members. For two mayors to do something like this was mind boggling.
Yet this incident together with Mascarin's May public appearance
became the motivation for an exercise.

Each
case had a clear and specific reason on its own to require an
investigation. The first centred around two mayors: Jim Diodati of
Niagara Falls and Frank Campion of Welland. These two public
servants decided that a Nazi salute was somehow a thing of jest.
Thinking it was a joke they hurled their arms out during an official
meeting of the Board of the Niagara Peninsula Conservation Authority.
A second request was in relation to City of St. Catharines council
member David Haywood and an incident revolving around his conduct on
social media.

In
the case of the two mayors the reasoning was simple: as both mayors
are sitting members of Regional Council, both would be under the
jurisdiction of the Regional Code of Conduct. As it turned out that
was an error in thinking and John Mascarin responded on July 12th
2017. It was a four page report to simply say at the end, “Based
on the foregoing, the Request has not been filed in the proper forum.
My jurisdiction does not extend to the NPCA, which is a separate
corporate body with its own code of conduct. Accordingly, I suggest
that you may seek to modify your Request and submit it to the
appropriate oversight officer at the NPCA for consideration.”
Modification was indeed conducted and the request forwarded onto the
Chair of the NPCA, Sandy Annunziata.

Now
the second investigation request had a different outcome, the
exercise provided tangible results. This case revolved around
Merritton Ward, City of St. Catharines Councillor David Haywood and
an exchange with him on Facebook. At the May 18th
Regional Council meeting John Mascarin had a great deal to say on a
number of issues, one being the whole social media thing. This is a
good time to note that of the three complaints John Mascarin chose to
investigate, two centred on Councillor Petrowski's outings in the
world of social media.

On
May 18th
John Mascarin stood before a public meeting of Regional Council and
said a number of things. He was there in what appeared to be a role
of educator or an expert, as he made a point of how he had helped
dysfunctional councils. He also stood there with a price tag
dangling out from the edge of his sleeve. Aside from the cost it is
important to ascertain just how much does a lawyer believe in the
words he utters, more so when that lawyer parades as an Integrity
Commissioner. Does he fit the description of the title of Integrity
as described in the opening paragraph?

John
Mascarin said, “The whole purpose of social media is to impose your
views, if you're tweeting onto other people.” If this is true it
is a very narrow minded view of social media. Just prior to this
statement Mascarin had this to say: “I looked at the word impose
and thought it meant foist, inflict, press, urge all these sorts of
synonyms, the fact that someone tweets something, you're
distributing, you're making communication. To me that's putting it
out there, that's imposing, you are sending it out in the
Twittersphere, you're imposing, you're propagating your view, that's
the whole purpose of social media.”

As
stated the motivation behind the exercise was to test John Mascarin
himself and his rhetoric used to justify his position and his
actions. The investigation request brought to his attention was
about a Facebook exchange with a City of St. Catharines Merritton
Ward Councillor David Haywood, accompanied by four photographs.
Remember according to John Mascarin the whole purpose of social
media, Facebook being a big chunk of it, is “to impose, to foist,
to inflict, to press, to urge.”

“St.
Catharines once bragged it was the Garden City, today it is full of
weeds. Look at the garden city at the intersection of Glendale Ave.,
and Almond St., in Merritton. Weeds reach up to 4 feet and more in
height, their seeds are blown into yards throughout the
neighbourhood. Dogwood insanely planted obscures the intersection to
a point that the crosswalk is dangerous to use and traffic entering
Glendale from Almond always at a risk of collision. Mayor Walter
Sendzik could not give a damn, and the Merritton Ward Councillors
Haywood and Stevens nowhere to be seen. Yet try and let this happen
in your own front yard and see what the city will do.”

This
post did not tag anyone. The mayor's name was clear and in full, the
two councillors just mentioned by last name the way it is done in
general conversation, not intended to be specific or personal. A
short time after the original post Councillor David Haywood came with
this first comment, sounding annoyed with the post. Haywood said:
“the first I have heard of this Alexander. Nowhere to be seen???
Try calling me or emailing me I can tell you
I haven't heard from you so please try using the same energy to pick
up the phone as you used to complain. We share the same passion for
the local environment but I cannot read minds.”

Young
Councillor David Haywood seemed to take a Facebook post very
personally which was not aimed directly at him. Maybe the whole
'Facebook Friend' is taken to mean something more by Haywood. His
first comment was ignored, there were other people who had made
comments, but Haywood's little stomp was also ignored.Haywood then came back again,
and said “I will have the areas looked at. We represent you
Merritton residents. We are your voice. To expect us to just know
things or to say for us to 'look' around doesn't help anyone. It is
condescending to state it in that fashion. Counterproductive.”

Wow,
Councillor David Haywood, the voice of the residents seemed a little
more annoyed. Was it because he was ignored by the original poster?
This time he got his response. “I thoroughly enjoy a public
servant with a soft skin. First of all for several years I have
spoken to the supervisors who used to come and look at this garden
with no result. This 'garden' has been like this since the early
days of Spring. Shame is on the public servant who is too busy
shifting responsibility on a member of the public. You Councillor
Haywood want examples of the actions of councillors representing
Merritton. I suggest you think twice before you as a newbie open
that Pandora's Box. You have city crews pass weekly I guess that is
not a problem for you either. Do not start something you can't
finish. If you really care than DO something about it if not do the
usual and blame someone else.”

Now
Merritton Ward, St. Catharines Councillor David Haywood lost his cool
completely. He turned a general post on social media into something
personal. That post was never made to be personal, nor was it aimed
at Councillor David Haywood specifically. He decided to prod twice
and when a response was provided only after his second prodding he
lost his composure. Yet it is important to listen to
Haywood's words in the opening, and when you do it gives an
indication that he intended this to be personal from the beginning.
Haywood's third comment read: “Nothing about soft skin. Justtiredofyou
automatically taking the position as a foe to your representative in
the Merritton Ward. How immature to tar the new representative based
on how you feel past reps have acted. Sorry I am more rational than
you and mature than you. I am not an armchair quarterback like
yourself. I have emailed staff concerning this. As for starting
something I cannot finish, bring it on!!! You will not scare or
bully me. Looking forward to see what you can do – wonder what I
will look in your cartoon.”

After posting his first comment he
came back again when no response was given, why? Integrity
Commissioner John Mascarin clearly expressed his interpretation of
social media. He said, “the whole purpose of social media is to
impose your views” and with the word impose he explained that he
thought it meant to “foist, inflict, press and urge.”

An investigation request was
prepared and filed against St. Catharines Councillor David Haywood.
All documentation was prepared, copies of screen captures together
with a signed Affidavit and handed to the City Clerk who as per the
City's Complaints Process provides it to the Integrity Commissioner.

A great deal was said at the May
Regional Council meeting by John Mascarin. He provided his
interpretations on the whole purpose of social media. At one time he
admitted that he was not very good with social media and didn't
really understand it nor use it much. Mascarin was asked by Regional
Councillor Burroughs how he treated complainants: “In each case I
have written what I call a short ruling and I do attempt to explain
why I did not proceed to a full investigation... I do communicate
with the complainant um... in some cases the complainant will say I
don't agree with you but I respect that you have given me some
indication.”

City
Clerk Bonnie Nistico-Dunk for the City of St. Catharines sent a
letter via email dated August 9th
2017. She stated that “Mr. Mascarin felt that your allegations
appear to contravene the following part of the Code,” then she
quoted the pertinent section of the code. Nistico-Dunk then
continued with, “Mr. Mascarin states that “the complaint, viewed
objectively, does not set out reasonable and probable ground to
support the allegation that the Councillor engaged in discredible
conduct in contravention of the Code. It is my determination that
the Complaint is frivolous and vexatious and that no investigation is
warranted.” And yet, each of the three investigations that John
Mascarin completed related to one regional councillor, two of which
centred on social media. He chose to investigate a tweet by the
councillor where he referred to the Mayor of Pelham David Augustyn as
“plastic face.”

So a request for investigation
relating to two mayors and a Nazi salute resulted in a four page
response directly from John Mascarin to simply say 'no I can't'. An
investigation request against City Councillor David Haywood brought a
censored or selective report from City Clerk Bonnie Nistico-Dunk. So
much for communicating with the complainant.

An
email was sent to John Mascarin requesting clarification regarding
his report and an explanation. Serious questions were asked relating
to the short quote Bonnie Nistico-Dunk provided in her letter.
Mascarin responded on August 14th
2017 several hours later and his response proved clearly he did not
like to be asked uncomfortable questions. He may say one thing in
public but what he really does appears to be very different.

Not one question was answered by
John Mascarin, he simply said that he provided his report to the City
Clerk as per the Complaint Protocol. He did attach a copy of his
report and made one statement that was alarming, he said “I have
briefly discussed this matter with the City Clerk and attach here to
my complete formal response.” What did the Integrity Commissioner
discuss with the City Clerk? Was the discussion prior to Mascarin
providing his formal response? The City Clerk has no jurisdiction
nor authority to discuss anything in relation to any complaint, all
that Nistico-Dunk could do is receive the complaint and forward it
on. The issue of who John Mascarin speaks with came up during the
May Regional Council meeting. At the time he first admitted to
speaking to people then back-tracked and claimed he had not.

Reading
the report the number of questions ballooned, so many that no
quarterback, armchair or not, could catch them all. City Clerk
Bonnie Nistico-Dunk stated in her August 9th
letter that “Mr. Mascarin felt...” yet Mascarin at no time refers
to feelings in his report. Nistico-Dunk then took two sentences,
combined them into one paragraph, and left out the core of Mascarin's
report, why?

In his 'Assessment & Analysis'
Mascarin quotes only selective words out of the complaint. Usually
lawyers play this trick to intentionally misdirect meaning. Taking
quotes that are limited and out of the proper context of the sentence
is intentional, but what did the Integrity Commissioner intend here?
Mascarin finished with this: “The complaint uses the word “attack”
or variations of the term no less than six (6) times.” Was this
simply a keen eye or was Mascarin acting like the Councillor's
defense lawyer rather than impartial judge and jury he proclaims to
be?

Paragraph two is the real gem and
defense lawyer Mascarin truly shines. He says, “Admittedly, the
Councillor uses a somewhat sarcastic tone in responding to the
complainant...” It would seem that clear and literally black and
white evidence in the original complaint was a waste of time on this
IC. The Councillor did not respond, he initiated the conversation
with intent. When no response was provided by the complainant to his
first post then he came on again.

The very best from Mascarin is
this, and no one on the courtroom drama series The Good Wife could
do better: “the specific words used in the Councillor's remarks
must be viewed in context to the posting made by the complainant
which appear to be clearly intended to bait and prod the Councillor.”
Here it is, lawyer Mascarin to Judge Mascarin, 'Your honour the
councillor shot the guy but it was not the councillor's fault, he
happened to be standing there'. As insane as this analogy sounds it
does not come close to IC John Mascarin's.

So
Mascarin claims that the original post baited and prodded poor young
Councillor David Haywood. How? Haywood chose to come onto the
conversation, when ignored he came again. He got a response which
basically said to leave well enough alone. Councillor
Haywood did not like that and said, “Just tired of you...,” and
then went onto a verbal attack. As an elected member of government
Haywood does not have the luxury of claiming he lost his temper, but
at least in this case he had a good defense lawyer.

Just
when one would think it is enough and the winning words had been
spoken Mascarin continues, “I have taken into account that the
facts giving rise to the Complaint occurred morethantwoyearsago”,
claiming that the complaint was filed on June 27th
2017. John Mascarin of Aird & Berlis lied! No publisher says
anything like this easily in print, but IC John Mascarin lied in his
final report. The original posting on Facebook was on July 12th
2015 and the complaint filed on June 20th
2017. Maybe Mascarin needs all his fingers and toes to calculate
this?

Two years had not yet passed and
the facts glaringly prove that Mascarin lied? Why? He said “In
making my ruling I have taken into account...” It seems that the
IC took into account a lie of his own making to make his decision.
How much of his report is based on real facts rather than convenient
interpretations?

An
email was sent to John Mascarin and many questions were asked, in
particular why did he lie. His response on August 17th
2017 truly shows how John Mascarin epitomizes the title 'Integrity'.
This is the same individual who stood before regional council and the
public throwing out his empty words. In his response he said, “My
ruling speaks for itself. You may disagree with certain points or
with the entire ruling but I am not prepared to respond further.”

Integrity Commissioner and lawyer
John Mascarin of Aird & Berlis lied, then said that he took into
account that lie in the making of his ruling. When asked to explain
his lie John Mascarin said that he was “not prepared to respond
further.” Maybe this is his way of taking the Fifth, even if it
doesn't exist in this country.

John Mascarin has proven that the
concept of Integrity Commissioners without a definitive code of
conduct and set procedural guidelines are only a farce. These ICs
are only tools for governments to either defame the reputation of a
complainant or to attack an unpopular councillor. If one of those
commissioners is caught lying and he or she simply refuses to explain
themselves then what trust can be placed in them? Mascarin and his
law firm Aird & Berlis pocketed public money for this, how is it
possible for him to refuse to answer questions?

Still
the insanity doesn't end here. Since Mascarin refused to explain
anything, including his lie, some questions were sent to City Clerk
Bonnie Nistico-Dunk on August 21st.
It was asked of her if the report by Mascarin was provided to
Council, whether Councillor Haywood was provided a copy of the
Mascarin report and/or the request for investigation, and if anyone
else had access to the report.

Nistico-Dunk responded the same day
stating that “there is no report to go to Council on the matter.”
She said “Councillor Haywood was advised of the complaint and was
provided with a copy of the ruling,” and that she was not aware of
anyone else who had been provided with a copy of the Mascarin ruling.
On August 22nd one more question was sent. The question
was simple; asking Nistico-Dunk who provided the Councillor with a
copy of the ruling. On August 29th this response was
received from the City Clerk: “Your original complaint was not
provided to Councillor Haywood. The response was not forwarded to
him from this office.”

Now the plot thickens and some
confusion arises. First the City Clerk says that the Councillor “was
advised of the complaint” but later that the “original complaint
was not provided.” Nistico-Dunk also said that he was “provided
with a copy of the ruling” and then later “the response was not
forwarded to him from this office.” An email of August 30th
was sent to attempt to find some clarity. The response was far from
the expected.

John Mascarin on September 1st sent an email beginning with “I have been made aware that you have been corresponding with the Clerk regarding your recent complainant.” On August 17th the same John Mascarin ended his email when asked why he had lied in his ruling with, “I am not prepared to respond further.” Yet here he was holding City Clerk's Nistico-Dunk's hand and responding to questions asked of her! Maybe a resident of any city or town would expect that their communications with a senior city employee would have a little confidentiality. A 'Confidentiality Notice' appears at the bottom of every email from the City, including those of Nistico-Dunk's. In this case public servant Bonnie Nistico-Dunk went running to Integrity Commissioner John Mascarin to respond on her behalf!

The Municipal Act under Section 223.3(1) clearly outlines the role of any Integrity Commissioner. It states that “an Integrity Commissioner who reports to council and who is responsible for performing in an independent manner the functions assigned by the municipality with respect to:

a) the application of the code of conduct for members of council

b) the application of any rules, procedures and policies of the municipality governing the ethical behaviour of members of council

St. Catharines Complaints Protocol describes the Integrity Commissioner and his/her responsibilities on page 8. Nowhere in either of these two documents does it say the IC is the personal assistant of a public servant.

Mascarin says, “I understand that you are seeking clarification of certain questions that you have asked the Clerk,” and then provides four bullet replies or answers. He was asked to provide some clarification on why he lied in his report and how did he take into account making his ruling a lie of his own making. On that he refused to provide clarification.

Bullet number one from Mascarin states that “The council member was advised by the Clerk that a complaint had been filed against him and that he could make inquiries with me regarding it. The Clerk advised me that it has been the historical practice at the City for a council member to be made aware of any complaint filed against him or her.” Why didn't Nistico-Dunk say this from the beginning? Instead she played with semantics, evasion and omission. Nowhere in the Complaints Protocol does it inform the complainant that the complaint once filed is relayed to the councilor. Is it possible to believe anything Nistico-Dunk might say on this matter?

Bullets two and three are even more exiting. Number two states: “The council member introduced himself to me while I was at City Hall and asked me to verify that a complaint had been made against him.” Then number three: “The council member also asked if he could be kept apprised of the matter and I advised him that I would either be in contact to make inquiries of him or he would be notified of any disposition respecting the complaint.”

On May 18th John Mascarin was questioned by a Regional Councillor as to who he spoke with during any process of an investigation. At first Mascarin admitted to speaking with members of the public and then did an about turn and denied the fact. In this matter on August 14th Mascarin says, “I have briefly discussed the matter with the City Clerk.” On September 1st he says, “The council member introduced himself to me...”, and then “I advised him.”

Still the best was bullet number 4: “My ruling was provided to the Clerk in accordance with the Complaint Procedure and I advised her I would forward a copy of the ruling to the council member to discharge my undertaking to notify him.” Lawyer's language, don't you just love it. Words like “discharge” and “undertaking” sound almost official and correct somehow.

On August 14th, explaining why he did not provide a copy of his report to the complainant, Mascarin stated “My advisement to the City Clerk was provided in accordance with Section 4(4) of the City's Complaint Protocol in Part 3 of the Code.” From the City's Complaint Protocol page 11 heading 4, Refusal to Conduct Investigation, (4) “The Integrity Commissioner will inform the Clerk when an investigation is terminated or not advanced for reason cited above. The Clerk in turn will notify the complainant of this decision.”

Any possible procedural fairness has been destroyed by the City Clerk Bonnie Nistico-Dunk and Integrity Commissioner John Mascarin. It is impossible to understand how or why an IC would respond to a communication sent to a public servant. The Clerk is not a member of City Council nor has she got anything to do with the Code of Conduct. Mascarin refused to deal with the issue of the two mayors and their Nazi salute simply because they were part of a board with its own code. What code is Nistico-Dunk a part of?

As an Integrity Commissioner, John Mascarin made a public 'undertaking' on May 18th. He said that he always provides his reasoning on a matter and answers questions from any complainant. Mascarin was asked why he lied in his report – he refused to answer. He was asked to clarify points in his report, he refused to answer. He breached the City's Complaint Protocol by making a promise to a Councillor he had no right to.

What really happened here? It was a simple exercise questioning the stupid actions of a City Councillor on social media. This Integrity Commissioner had already set his own precedent on the issue. The result has been a mountain of unanswered questions. A City Clerk who intentionally evaded answering questions. This same Clerk carried out actions which put the 'integrity' of the complaints process in jeopardy. At the same time the IC lied in his final report and refused to clarify why he lied, making his report invalid. Taking things further, the IC admitted to breaching the City's Complaints Protocol and took on the part of a secretary to a public servant.

This notion of an Integrity Commissioner acting as a personal secretary for a City Clerk is both alarming and dangerous. Everything about an IC sits on the balance of complete and total independence and impartiality. The actions of Integrity Commissioner John Mascarin and City of St. Catharines City Clerk, Ms. Nistico-Dunk raise questions which must be answered.

This last communication from 'Integrity' Commissioner John Mascarin leaves a mountain of questions. City Clerk Bonnie Nistico-Dunk through her actions has raised issues surrounding

the Complaint Protocol in St. Catharines to a new level. Meanwhile Mayor Walter Sendzik sits on his hands and brags how his city has the best code of conduct and complaint protocol in the province.

All of this on the taxpayer's dollar, and maybe Regional Councillor Gale's comment on May 18th describes the whole process well, that it is a farce. This one has not ended yet, watch for more to come on Mayorgate.